Calfstream P/L as trustee for Belford family v King [2006] QCA 427

[2006] QCA 427 COURT OF APPEAL WILLIAMS JA Appeal No 9238 of 2006 CALFSTREAM PTY LTD as trustee for BELFORD FAMILY Applicant/Appellant and JENNIFER BARBARA KING Respondent/Defendant and McKENTAY ENTERPRISES PTY LTD Respondent/Defendant BRISBANE ..DATE 31/10/2006 JUDGMENT 1 -- 1 of 4 -- MR J MURDOCH (instructed by Mark Treherne & Assoc) for the applicant MR A D STOBIE (instructed by Price & Roobottom) for the respondent King WILLIAMS JA: The applicant is the owner of a business which provides deliveries of food to work sites in the region of the Gold Coast. The first respondent was, until the 12th of October 2006, an employee of the applicant. She has resigned and has commenced work with a rival organisation. A number of the businesses that were on her delivery list whilst employed with the applicant have indicated that they no longer wish to be serviced by the applicant but wish to be served by the competitor. That provides the broad background to the proceedings which have now reached this Court. On the 13th of October 2006 Judge Trafford-Walker granted an ex parte interim injunction restraining the first respondent until Monday, the 16th of October 2006, from canvassing customers of the applicant. That interim injunction was extended by consent on the 16th of October until the 23rd of October. On the 23rd of October the matter came before Judge Newton and at that time there was an extensive affidavit placed before the Court by the first respondent. The issues raised in that affidavit resulted in Judge Newton not extending the interim injunction but adjourning further consideration of an application for an injunction until the 2 -- 2 of 4 -- 26th of October. By the 26th of October further material had been placed before him and he made a limited interim injunction restraining the first respondent from canvassing certain named customers of the applicant. The consequence of that limited injunction was that the first respondent was at liberty to canvass former customers of the applicant not named in the order. That interim injunction was to last until the 6th of November 2006 and the matter was adjourned until the 6th of November 2006. It seems clear to me that the District Court has not yet finally determined the application for an interlocutory injunction. It would appear that that is to be determined on the 6th of November. On the 27th of October the applicant lodged a notice of appeal in this Court against the interim order of 26 October 2006 and by application filed the 30th of July has sought the following orders, namely that pending the hearing of the appeal Judge Newton's order of 26 October be stayed; and that this Court grant an injunction against the respondents in broader terms pending the hearing of the appeal. If any appeal were to be ultimately heard by this Court it would only be against the interim order of Judge Newton of the 26th of October 2006 which was effective only until the 6th of 3 -- 3 of 4 -- November. The order appealed against would expire before any appeal was heard. In those circumstances I am of the view that a case has not been made out for this Court to grant any further injunctive relief. If the Court were to do so it would only be operative until the 6th of November. Bearing in mind that all issues will be raised again before the District Court Judge on the 6th of November, it appears to me that it is appropriate to leave the matter remain in its present state until it is so considered by the District Court. The application is therefore dismissed. ... WILLIAMS JA: The application is dismissed with costs for the reasons that I have given. ----- 4 -- 4 of 4 --